SEPARATION AGREEMENT AND GENERAL RELEASE AND CONSULTING AGREEMENT
AND
CONSULTING
AGREEMENT
Brookdale Senior Living Inc., 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, (including affiliates and its
successors, assigns, employees, officers, directors, representatives,
shareholders and agents, collectively referred to as "Brookdale"),
and Xxxx X. Xxxxxxx ("Employee"
or "Xxxxxxx")
have entered into this Separation Agreement and General Release (this "Agreement")
on this 11th day of February, 2008 (collectively referred to as the "Parties").
In consideration of the mutual promises contained herein, the Parties agree as
follows:
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1.
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Last Day of
Employment. Employee and Brookdale agree that Employee's
employment with Brookdale has been terminated by Employee on February 11,
2008 (the "Termination Date"). Brookdale will reimburse
Employee for all business expenses incurred on behalf of Brookdale through
the Termination Date, in accordance with Brookdale's policies with respect
to the reimbursement of expenses. Employee hereby confirms that, effective
on the Termination Date, Employee no longer held any positions as an
officer, director, manager, governor or employee of Brookdale (including
its parents, subsidiaries and affiliates at any level), and Employee
agrees to promptly execute such customary documents and take such
customary actions as may be necessary or reasonably requested by Brookdale
to effectuate or memorialize the termination of such positions, including,
without limitation, resignations of any such
positions. Employee acknowledges that his last day of
employment with Brookdale coincided with or preceded his signing of this
Agreement.
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2.
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Consulting
Services. Immediately following the Termination Date
until September 14, 2010, or such earlier date as either Xxxxxxx or
Brookdale shall terminate the consulting relationship being established
hereunder (the applicable date being sometimes called the "Consulting
Termination Date"), Xxxxxxx agrees to make himself available to consult
with Brookdale at reasonable times that do not interfere with Xxxxxxx’x
other commitments. Brookdale and Xxxxxxx anticipate that the
level of bona fide services Xxxxxxx will perform pursuant to this
Agreement shall be no more than fifty percent (50%) of the average level
of bona fide services performed during the thirty-six (36) months
immediately preceding the Termination Date. On reasonable
request, Xxxxxxx will cooperate in all reasonable respects with Brookdale
and its affiliates in connection with any and all existing or future
litigation, actions or proceedings (whether civil, criminal,
administrative, regulatory or otherwise) brought by or against Brookdale
or any of its affiliates, to the extent Brookdale reasonably deems
Xxxxxxx’x cooperation necessary (taking into account Xxxxxxx’x other
commitments). Xxxxxxx shall be reimbursed for all reasonable
out-of-pocket expenses he incurs (including, without limitation,
reasonable attorney fees). Xxxxxxx'x consulting services may
include (by way of illustration, and not limitation) providing advice to
Brookdale's management regarding potential acquisitions and investment
opportunities. Until Xxxxxxx is no longer serving as a
consultant hereunder (or until such earlier date as Xxxxxxx may advise
Brookdale that he no longer needs the office space and facilities),
Brookdale shall provide Xxxxxxx with
Chicago
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office
space, facilities and assistance from Brookdale personnel comparable to the
space, facilities and assistance he had as an officer of
Brookdale. Brookdale agrees to cause the Administrator of the
Brookdale Senior Living Inc. Omnibus Stock Incentive Plan, as Amended and
Restated June 12, 2007 (the "Plan") to amend unilaterally his Award Agreement
dated as of September 14, 2005 (the "2005 Agreement"), his Restricted Share
Agreement dated as of March 13, 2006 (the "2006 Agreement"), and his Restricted
Share Agreement dated as of March 7, 2007 (the "2007 Agreement", and,
collectively with the 2005 Agreement and the 2006 Agreement, the "Restricted
Share Agreements") so that (i) his termination of employment on February 11,
2008 shall not be treated as a termination of employment under the Restricted
Share Agreements, (ii) for vesting purposes the period during which he renders
consulting services hereunder shall be treated as a continued period of
employment, and (iii) any termination of his post-employment consulting services
shall be treated as a termination of employment under the Restricted Share
Agreements.
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3.
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Independent Contractor
Status as Consultant. While Xxxxxxx is providing
consulting services to Brookdale pursuant to this Agreement (the
"Consulting Period"), Xxxxxxx shall at all times be an independent
contractor with respect to Brookdale, and Brookdale shall not withhold or
deduct from any amounts payable under this Agreement to Xxxxxxx as a
consultant any amount in respect of income taxes or other employment taxes
of any other nature on behalf of Xxxxxxx. It is intended that
the compensation paid hereunder to Xxxxxxx as a consultant shall
constitute revenues to Xxxxxxx, that Xxxxxxx shall be solely responsible
for payment of any federal, state, local or other income, payroll and/or
employment taxes. Xxxxxxx shall have full and complete control
over the manner and method of rendering his consulting services
hereunder. However, the consulting services of Xxxxxxx are
subject to the approval of Brookdale and shall be subject to Brookdale's
general right of supervision to secure the satisfactory performance
thereof. Xxxxxxx shall not be entitled to the benefits provided
by Brookdale to its employees, including any group insurance and coverage
under any tax-qualified retirement
plan.
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4.
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Confidentiality. Xxxxxxx
acknowledges and agrees that all Trade Secrets (as defined herein) are
confidential to and shall be and remain the sole and exclusive property of
Brookdale. Xxxxxxx agrees that he shall (a) hold all Trade
Secrets in strictest confidence; (b) not disclose, reproduce, distribute
or otherwise disseminate such Trade Secrets, and shall protect such Trade
Secrets from disclosure by others; and (c) make no use of such Trade
Secrets without the prior written consent of Brookdale, except in
connection with Xxxxxxx’x relationship with Brookdale. For the
purposes of this Agreement, “Trade Secrets” shall mean any and all data
and information relating to Brookdale which (i) derive independent
economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who
can obtain economic value from their disclosure or use; and (ii) are the
subject of efforts that are reasonable under the circumstances to maintain
their secrecy. Trade Secrets may include technical or
non-technical data, formulas, patterns, compilations, programs, devices,
methods, techniques, drawings, processes, financial data, financial plans,
product plans, sales or advertising information and plans, marketing
information and plans, pricing information, the identity or lists of
customers, prospective customers and suppliers. Notwithstanding
the foregoing, Trade Secrets shall not include data and
information
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which
were: (A) at the time of disclosure to Xxxxxxx or became thereafter through no
fault of Xxxxxxx a part of the public domain by publication or otherwise; (B)
developed or ascertained by or for Xxxxxxx by independent means without the
benefit of the Trade Secrets; or (C) received by Xxxxxxx without restriction
from a third party who was under no obligation of confidentiality to Brookdale
with respect thereto.
Upon the
Consulting Termination Date, or upon the earlier request of Brookdale, Xxxxxxx
shall deliver to Brookdale all property belonging to Brookdale, including
without limitation all documents evidencing any physical embodiments of Trade
Secrets then in his custody, control or possession.
Xxxxxxx
shall abide by all of Brookdale’s information system security policies and
procedures provided to Xxxxxxx by Brookdale during the Consulting
Period. In addition, during the Consulting Period, Xxxxxxx shall
abide by Brookdale’s Xxxxxxx Xxxxxxx Policy and any trading restrictions
generally applicable to Brookdale’s officers and directors pursuant to the terms
of that policy.
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5.
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Ownership. Title
to all written material, reports, programs and any other material or work
product originated and prepared for Brookdale under this Agreement shall
belong exclusively to Brookdale.
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6.
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Employee General
Release of Claims. Employee for Employee, Employee's
estate, Employee's heirs, family members, successors and assigns hereby
voluntarily, knowingly and willfully forever releases and discharges
Brookdale and its affiliates, successors, assigns, employees, officers,
directors, representative, shareholder agents and all persons acting by,
through, under or in concert with any of the foregoing in both their
official and personal capacities (the "Releasees") from any and all
claims, whether or not known, accrued, vested or ripe (hereinafter,
"Claims"), that Employee has or may have against the Releasees arising
from or in any way related to Employee's employment with Brookdale or any
affiliate thereof up to and including the date of Employee's execution of
this Agreement or the termination of that employment relationship in
accordance with the contractual provisions of this Agreement, including,
but not limited to, any such claim for an alleged violation of any or all
federal, state and local laws and anti-discrimination laws or the
following statutes and court-made legal
principles:
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o
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Title
VII of the Civil Rights Act of 1964, as
amended;
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o
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The
Civil Rights Act of 1991;
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o
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The
Equal Pay Act;
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o
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Any
claim arising under the provisions of the False Claims Act, 31 U.S.C.A. §
3730, including, but not limited to, any right to personal gain with
respect to any claim asserted under its "qui tam"
provisions;
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o
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Sections
1981 through 1988 of Title 42 of the United States Code, as
amended;
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o
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The
Employee Retirement Income Security Act of 1974, as
amended;
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o
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The
Immigration Reform and Control Act, as
amended;
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o
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The
Americans with Disabilities Act of 1990, as
amended;
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o
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The
Age Discrimination in Employment Act of 1967, as
amended;
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o
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The
Workers Adjustment and Retraining Notification Act, as
amended;
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o
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The
Occupational Safety and Health Act, as
amended;
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o
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The
Fair Labor Standards Act of 1938, as
amended;
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o
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The
Illinois Human Rights Act, as
amended;
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o
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The
Municipal Code of Chicago, as
amended;
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o
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any
other federal, state or local civil or human rights law or any other
local, state or federal law, regulation or
ordinance;
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o
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any
claims arising out of or related to an express or implied employment
contract (including, without limitation, Employee's employment offer
letter dated May 19, 2005 (the "Offer Letter")) or a covenant of good
faith and fair dealing;
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o
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any
public policy, contract, tort, or common law;
or
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o
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any
allegation for costs, fees, or other expenses including attorneys' fees
incurred in these matters.
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Notwithstanding
the foregoing, nothing in this Agreement shall release or waive any rights or
claims Employee may have: (i) under this Agreement; (ii) for indemnification
under any written indemnification agreement by and between Employee and
Brookdale and/or under applicable law or Brookdale's charter or bylaws; (iii)
under any applicable insurance coverage(s) (including, without limitation, COBRA
rights); (iv) with respect to any accrued and vested benefits under any
tax-qualified retirement plans; or (v) any claim that cannot be waived or
released by a private agreement (including any right to seek a determination of
the validity of the waiver of Employee's rights under the federal Age
Discrimination in Employment Act of 1967 ("ADEA")). Additionally, nothing in
this Agreement shall be construed to prohibit Employee from filing any charge or
participating in any investigation or proceeding conducted by the Equal
Employment Opportunity Commission or a comparable state or local agency.
Notwithstanding the foregoing, Employee waives his right to recover monetary
damages relating to any such charge, complaint, or lawsuit filed by Employee or
anyone on Employee's behalf.
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7.
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Brookdale
Release. Brookdale for itself, its officers, directors,
successors, affiliates, agents, employees and assigns, both in their
individual and representative
capacities,
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hereby
voluntarily, knowingly and willfully forever releases and discharges Employee,
Employee's agents, attorneys, representatives, heirs and assigns from any and
all claims, whether or not known, accrued, vested or ripe, that Brookdale has or
may have against Employee arising from or in any way related to Employee's
service with Brookdale up to and including the date of execution of this
Agreement or the termination of that employment relationship in accordance with
the contractual provisions of this Agreement, including, but not limited to, any
such claim for an alleged violation of any federal, state or local law,
regulation or ordinance; any claims arising out of or related to an express or
implied employment contract (including, without limitation, the Offer Letter) or
a covenant of good faith and fair dealing; any public policy, contract, tort, or
common law; or any allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters. Notwithstanding the foregoing,
nothing in this Agreement shall release or waive any rights or claims Brookdale
may have (i) under the terms of this Agreement or (ii) as a result of any
unlawful or fraudulent conduct by Employee.
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8.
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Affirmations. Employee
and Brookdale each affirm that neither has filed, caused to be filed, or
presently is a party to any claim, complaint, or action against the other
in any forum or form. Employee furthermore affirms that
Employee has no known workplace injuries or occupational diseases, and has
been provided and has not been denied any leave requested under the Family
and Medical Leave Act. Employee disclaims and waives any right of
reinstatement with Brookdale.
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9.
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Benefits and
COBRA. Effective as of the Termination Date, Employee
will cease all Brookdale health benefit coverage and other benefit
coverage. Employee acknowledges that Brookdale has advised Employee that
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"), Employee has a right to elect continued coverage under the
Brookdale group health plan for a period of eighteen (18) months from the
Termination Date.
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10.
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'34 Act
Filing. Brookdale will disclose the existence and terms
and will file this Agreement with the Securities and Exchange Commission
in satisfaction of its reporting obligations under the Securities Exchange
Act of 1934, as amended. The Form 8-K to be filed to which this Agreement
shall be attached as an exhibit and any press release issued in connection
with Employee's departure from Brookdale shall first be furnished to
Employee with an opportunity for Employee to comment, and Brookdale will
attempt in good faith to provide Employee with an opportunity to review
any changes or additions to any such disclosure in any other public
filings or disclosure in advance.
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11.
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Continuing Obligations
to Brookdale; Litigation Matters. The Parties have
certain rights and obligations under the provisions of Employee's
Restricted Share Agreements. Xxxxxxx agrees that the
restrictive covenant provisions therein relating to non-competition,
non-solicitation of employees, clients and others, non-disparagement and
confidentiality shall continue to apply for the longer of (i) the periods
specified therein or (ii) the period ending one year after the date he is
no longer serving Brookdale as a consultant; such provisions are
unaffected by the execution of this Agreement and are incorporated by
reference herein. With respect to any and all existing or
future litigation, actions or proceedings (whether civil, criminal,
administrative, regulatory or otherwise)
brought
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against
Employee in connection with his employment by Brookdale, Brookdale will honor,
and proceed in accordance with, its Bylaws.
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12.
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Notices. All
notices, demands, consents or communications required or permitted
hereunder shall be in writing. Any notice, demand or other communication
given under this Agreement shall be deemed to be given if given in writing
(including facsimile or similar transmission) addressed as provided below
(or at such other address as the addressee shall have specified by notice
actually received by the sender) and if either (a) actually delivered in
fully legible form to such address or (b) in the case of a letter, five
(5) days shall have elapsed after the same shall have been deposited in
the United States mail, with first-class postage prepaid and registered or
certified:
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To
Employer:
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000
Xxxxxxxx Xxxxx, Xxxxx 000
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Xxxxxxxxx,
XX 00000
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Attention:
General Counsel
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With
a copy to:
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Xxxxxxx
Xxxx, Slate, Xxxxxxx & Xxxx LLP
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0
Xxxxx Xxxxxx
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Xxx
Xxxx, XX, 00000-0000
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Fax:
(000) 000-0000
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Attention:
Xxxxxx X. Coco, Esq.
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To
Employee:
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Xxxx
X. Xxxxxxx
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At
address currently on Brookdale's records
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With
a copy to:
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13.
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Governing Law and
Interpretation. This Agreement shall be governed and
controlled by and in accordance with the laws of the State of Delaware without
regard to its conflict of laws provision. In the event Employee or
Brookdale breaches any provision of this Agreement, Employee and Brookdale
affirm that either may institute an action to specifically enforce any
term or terms of this Agreement. Venue for any action brought to enforce
the terms of this Agreement or for breach thereof shall lie in any court
of competent jurisdiction in Chicago, Illinois. Should any provision of
this Agreement be declared illegal or unenforceable by any court of
competent jurisdiction and cannot be modified to be enforceable, excluding
the general release language, such provision shall immediately become null
and void, leaving the remainder of this Agreement in full force and
effect. The Parties affirm that this Agreement is the product of
negotiation and agree that it shall not be construed against either Party
on the basis of sole
authorship.
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14.
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Nonadmission of
Wrongdoing. The Parties agree that neither this
Agreement nor the furnishing of the consideration for same shall be deemed
or construed at anytime for any purpose as an admission by either Party of
any liability, wrongdoing or unlawful conduct of any
kind.
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15.
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Amendment. This
Agreement may not be modified, altered or changed except upon express
written consent of both Parties wherein specific reference is made to this
Agreement.
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16.
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Entire
Agreement. This Agreement sets forth the entire
agreement between the Parties hereto and fully supersedes any prior
agreements or understandings between the Parties (including the Offer
Letter), except as certain provisions of other prior agreements are
specifically incorporated by reference herein. Each Party acknowledges
that it has not relied on any representations, promises, or agreements of
any kind made to it in connection with the other Party's decision to enter
into this Agreement, except for those set forth in this
Agreement.
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17.
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Payments and
Withholding. The Parties agree that, if Employee's death
precedes the time of certain payments being made hereunder, such payments
shall be made to Employee’s estate. All payments hereunder to
Employee as an employee (but not as a consultant) shall be subject to
Brookdale's normal practices in complying with applicable withholding
requirements, unless Employee provides evidence satisfactory to Brookdale
that all applicable requirements can be complied with in a different
manner, for example, by Employee's direct payments to the taxing
authorities.
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[Remainder
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IN
WITNESS WHEREOF, the parties hereto knowingly and voluntarily executed this
Agreement on the date first written above:
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By:
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/s/
W.E. Sheriff
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Name:
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W.E.
Sheriff
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Title:
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Chief
Executive Officer
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EMPLOYEE
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By:
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/s/
Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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